Susan Estrich: Buyer Beware

While Barack Obama and Hillary Clinton continued to fight it out for the Democratic nomination on Tuesday, John McCain was waging a fight of his own within his party, for the support of the hard-core Republican base who aren’t quite sure they trust the man who discussed running with John Kerry in 2004 and reportedly told Arianna Huffington that he didn’t vote for George Bush in 2000.

With attention focused elsewhere, it was a perfect day for McCain to appeal to the base he will be spending less time reassuring when the lights get hotter.

The subject was judges, which in certain circles, at least, is code for abortion and gay rights. While McCain has a strong (or weak, depending on your perspective) voting record from the point of view of the anti-abortion movement, it isn’t a subject he talks about a great deal, particularly when polishing his image as a maverick, or courting independent voters, or seeking to play the peacemaker role on the subject of judicial confirmations.

The judiciary also is not traditionally a big voting issue for most people, even though the composition of it is a vitally important consequence of presidential elections.

Talking about whom you’ll appoint to the Supreme Court generally is as effective at swaying votes as those old-fashioned "heartbeat away from the presidency" ads candidates run when their VP candidate is more popular than they are.

Of course it is important who becomes vice president, particularly in light of recent history. Of course it is important who gets nominated both to the Supreme Court and to the federal courts, given the critical issues decided there, not to mention the average age of the current court and the life tenure given to federal judges.

It’s just not the sort of thing most voters have at the top of their minds when they enter the voting booth. People vote for president, not vice president. They vote the economy, pocketbook issues, occasionally (even in the midst of one, as we are now) a war. The Supreme Court? Not many.

But for activists, particularly the conservative activists who are most suspicious of McCain’s maverick streak and his ties to Democrats and independents, the judiciary provides a perfect subject to reach out to the base while no one else is listening or paying attention. And that is precisely what McCain did on Tuesday.

He attacked those who would appoint "activists" to the bench (hello, Barack), embracing the distinction that activists of a certain stripe (those who pursue the path of overruling unfavorable precedent, protecting economic rights at the expense of personal liberty and states at the expense of the individual) are conservative, not active.

By this definition, his list of favorite judges includes not only current Supremes John Roberts and Samuel Alito but also his fellow Arizonan, the late Chief Justice of the Supreme Court William Rehnquist.

Rehnquist was as much an activist, and a totally predictable one, as any recent justice; it was just activism in pursuit of his own particular agenda. Notably missing from McCain’s list of exemplars was the other fellow (or should I say sister) Arizonan to sit on the court in recent years, one of my favorites (except for her unfortunate decision to step down) Sandra Day O’Connor.

While McCain praised Rehnquist, he avoided O’Connor. While he accused judges of using the bench as a shortcut to the power that legislators have to earn at the ballot box and exercise with accountability, the fact is that was precisely the kind of experience O’Connor brought to the bench, and it served her well in distinguishing between the appropriate functions of legislators and jurists.

But because O’Connor did not toe anyone’s line on the court but became a voice of balance and reason, she was missing from McCain’s speech this week.

Come the fall, the John McCain who runs for president is likely to emphasize his streak of independence, his maverick instincts, his courage in taking on not only our enemies abroad but his own colleagues in the Congress and the Republican Party.

But with all eyes on the Democrats on Tuesday, that John McCain was nowhere to be seen. Instead, there he was, pandering for the support of those who have scorned him in the past, and saying not one word to support the image of independence he is sure to cultivate in the fall. Caveat emptor. Buyer beware.

Susan Estrich is the Robert Kingsley Professor of Law and Political Science at the University of Southern California. She was Professor of Law at Harvard Law School and the first woman President of the Harvard Law Review. She is a columnist for Creators Syndicate and has written for USA Today and the Los Angeles Times.

Estrich's books include the just published "Soulless," "The Case for Hillary Clinton," "How to Get Into Law School," "Sex & Power," "Real Rape," "Getting Away with Murder: How Politics Is Destroying the Criminal Justice System" and "Making the Case for Yourself: A Diet Book for Smart Women."

She served as campaign manager for Michael Dukakis' presidential bid, becoming the first woman to head a U.S. presidential campaign. Estrich appears regularly on the FOX News Channel, in addition to writing the "Blue Streak" column for FOXNews.com.